Forman v. United States ( 2019 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS CRISTIAN JAQUES FORMAN, § § Movant, § § versus § CIVIL ACTION NO. 1:16-CV-461 § UNITED STATES OF AMERICA, § § Respondent. § MEMORANDUM ORDER OVERRULING MOVANT’S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Movant Cristian Jaques Forman, an inmate at the Federal Prison Camp located in Anthony, Texas, proceeding pro se, brought this motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge recommends that the motion be dismissed as barred by limitations or, in the alternative, denied. The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings and all available evidence. Movant filed objections to the magistrate judge’s Report and Recommendation. This requires a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes movant’s objections are without merit. Movant seeks a reduction in his sentence for a minor role pursuant to a recent amendment to the United States Sentencing Guidelines, Amendment 794. However, after movant filed his objections, the Fifth Circuit considered the issue and found that Amendment 794 is not retroactively applicable and that relief is unavailable in a § 2255 proceeding based on the Amendment. United States v. Alipizar, 718 F. App’x 305, 306 (5th Cir. 2018); In re Pinales, 703 F. App’x 353, 354 (5th Cir. 2017); United States v. Guerrero, 691 F. App’x 179, 180 (5th Cir. 2017). Accordingly, movant’s objections should be overruled. Furthermore, the movant is not entitled to the issuance of a certificate of appealability. An appeal from a judgment denying a motion under section 2255 may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting a certificate of appealability, like that for granting a certificate of probable cause to appeal under prior law, requires the movant to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial showing, the movant need not establish that he should prevail on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve the issues in a different manner, or that the questions presented are worthy of encouragement to proceed further. See Slack, 529 U.S. at 483-84. Any doubt regarding whether to grant a certificate of appealability is resolved in favor of the movant, and the severity of the penalty may be considered in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000). Here, the movant has not shown that any of the issues raised by his claims are subject to debate among jurists of reason. The factual and legal questions advanced by the movant are not novel and have been consistently resolved adversely to his position. In addition, the questions 2 presented are not worthy of encouragement to proceed further. Therefore, the movant has failed to make a sufficient showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of appealability shall not be issued. ORDER Accordingly, movant’s objections are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge’s recommendation. SIGNED at Beaumont, Texas, this 19th day of November, 2019. MARCIA A. CRONE UNITED STATES DISTRICT JUDGE